[Federal Register Volume 72, Number 246 (Wednesday, December 26, 2007)]
[Rules and Regulations]
[Pages 73215-73218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-24937]



[[Page 73215]]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 11, 23, 39, and 52

[FAC 2005-23; FAR Case 2006-030; Item I; Docket 2007-0001, Sequence 9]
RIN 9000-AK85


Federal Acquisition Regulation; FAR Case 2006-030, Electronic 
Products Environmental Assessment Tool (EPEAT)

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Interim rule with request for comments.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on an interim 
rule amending the Federal Acquisition Regulation (FAR) to require use 
of Electronic Products Environmental Assessment Tool (EPEAT) when 
acquiring personal computer products such as desktops, notebooks (also 
known as laptops), and monitors pursuant to the Energy Policy Act of 
2005 and Executive Order 13423, ``Strengthening Federal Environmental, 
Energy, and Transportation Management.''

DATES: Effective Date: December 26, 2007.
    Comment Date: Interested parties should submit written comments to 
the FAR Secretariat on or before February 25, 2008 to be considered in 
the formulation of a final rule.

ADDRESSES: Submit comments identified by FAC 2005-23, FAR case 2006-
030, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. To 
search for any document, first select under ``Step 1,'' ``Documents 
with an Open Comment Period'' and select under ``Optional Step 2,'' 
``Federal Acquisition Regulation'' as the agency of choice. Under 
``Optional Step 3,'' select ``Rules''. Under ``Optional Step 4,'' from 
the drop down list, select ``Document Title'' and type the FAR case 
number ``2006-030''. Click the ``Submit'' button. Please include your 
name and company name (if any) inside the document. You may also search 
for any document by clicking on the ``Search for Documents'' tab at the 
top of the screen. Select from the agency field ``Federal Acquisition 
Regulation'', and type ``2006-030'' in the ``Document Title'' field. 
Select the ``Submit'' button.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (VIR), 1800 F Street, NW., Room 4035, ATTN: Laurieann 
Duarte, Washington, DC 20405.
    Instructions: Please submit comments only and cite FAC 2005-23, FAR 
case 2006-030, in all correspondence related to this case. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal and/or business confidential information 
provided.

FOR FURTHER INFORMATION CONTACT: Mr. William Clark, Procurement 
Analyst, at (202) 219-1813 for clarification of content. Please cite 
FAC 2005-23, FAR case 2006-030. For information pertaining to status or 
publication schedules, contact the FAR Secretariat at (202) 501-4755.

SUPPLEMENTARY INFORMATION:

A. Background

    On January 24, 2007, President Bush issued Executive Order 13423, 
``Strengthening Federal Environmental, Energy, and Transportation 
Management.'' Section 2(h) states that the head of each Agency shall 
``ensure that the agency * * * when acquiring an electronic product to 
meet its requirements, meets at least 95 percent of those requirements 
with an Electronic Product Environmental Assessment Tool (EPEAT)-
registered electronic product, unless there is no EPEAT standard for 
such product''.
    EPEAT is a system to help purchasers in the public and private 
sectors evaluate, compare, and select desktop computers, notebooks and 
monitors based on their environmental attributes. EPEAT also provides a 
clear and consistent set of performance criteria for the design of 
products, and provides an opportunity for manufacturers to secure 
market recognition for efforts to reduce the environmental impact of 
their products.
    The National Technology Transfer and Advancement Act of 1995 
(NTTAA) and the OMB Circular A-119, ``Federal Participation in the 
Development and Use of Voluntary Consensus Standards and in Conformity 
Assessment Activities,'' direct Federal agencies to utilize voluntary 
consensus standards for regulatory and procurement activities, and to 
participate in the development of these standards, unless to do so 
would be inconsistent with law or impractical. The Institute of 
Electrical and Electronics Engineers (IEEE) 1680 Standard for the 
Environmental Assessment of Personal Computer Products houses a set of 
environmental performance criteria, which were developed in an open 
consensus-based process by an American National Standards Institute 
(ANSI)-accredited organization in accordance with the NTTAA 
requirements. Most of the IEEE 1680 criteria refer to environmental 
performance characteristics of the specific product. EPEAT lists 
products that comply with this IEEE standard.
    The interim rule amends the FAR to require the use of the EPEAT 
Product Registry and the IEEE 1680 Standard for the Environmental 
Assessment of Personal Computer Products in all solicitations and 
contracts for personal computer desktops, notebooks, and monitors. A 
new clause is required to effectively implement the above-mentioned 
statute and Executive order.
    FAR Subpart 23.7 currently implements the requirements for 
acquiring environmentally preferable products and services. The interim 
rule revises Subpart 23.7, and prescribes a new clause, FAR 52.223-16 
(also included in FAR 52.212-5 for acquisition of commercial items) in 
all solicitations and contracts for the acquisition of personal 
computer products, services that require furnishing of personal 
computer products for use by the Government, and services for 
contractor operation of Government-owned facilities. In accordance with 
Section 7 of Executive Order 13423, this requirement applies only to 
contracts performed in the United States, unless otherwise authorized 
in agency procedures.
    The Councils have defined ``personal computer products'' to mean 
notebook computers, desktop computers, or computer monitors, and all 
peripherals that are integral to the operation of such items, 
consistent with the IEEE 1680 standard. For example, the desktop 
computer together with the keyboard, the mouse, and the power cord 
would be a personal computer product. Printers, copiers, and fax 
machines are not yet covered. To clarify application of the clause, the 
interim rule defines notebook computer, computer desktop and computer 
monitor, using the definitions in the IEEE 1680 standard.

Authorities

    E.O. 13423 revoked E.Os. 13148, 13101, and 13123. These E.Os. have 
not been eliminated from FAR 23.702 under this case, as other 
conforming changes will be required. A separate FAR case will address 
these conforming changes.

[[Page 73216]]

Required vs. Optional Criteria

    The IEEE 1680 Standard identifies both required criteria and 
optional criteria. EPEAT ``Bronze'' registered products must meet all 
required criteria. EPEAT ``Silver'' registered products must meet all 
required criteria and 50 percent of the optional criteria. EPEAT 
``Gold'' registered products must meet all required criteria and 75 
percent of the optional criteria. FAR clause 52.223-16 makes EPEAT 
Bronze registration the standard that contractors must meet. Office of 
Federal Environmental Executive guidance asks agencies to strive to 
procure EPEAT Silver registered products, and Alternate I to the clause 
makes EPEAT Silver registration the standard that contractors must 
meet, when agencies determine that standard appropriate. Agencies also 
may use EPEAT Silver or Gold registration in proposal evaluation.
    The basic clause requires the contractor to furnish only personal 
computer products that at the time of submission of proposals were 
EPEAT Bronze registered or higher, the first level discussed in clause 
1.4 of the IEEE 1680 Standard for the Environmental Assessment of 
Personal Computer Products. The contractor must furnish what it 
offered, even if the standard has changed between the offer and 
delivery. Alternate I provides the same conditions for EPEAT Silver 
registered products.
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The changes may have a significant economic impact on a substantial 
number of small entities within the meaning of the Regulatory 
Flexibility Act, 5 U.S.C. 601 et seq., because it mandates standards 
for personal computer products that will be offered for sale to the 
Government.
    An Initial Regulatory Flexibility Act (IRFA) has been prepared. The 
analysis is summarized as follows:

    As of January 2006, four of the thirteen vendors who have 
registered products on the EPEAT Product Registry are small 
businesses.
    Data are not available on how many small businesses are 
reselling personal computer products to the Government, but 
according to the EPA's Office of Small Disadvantaged Business 
Utilization, there are approximately 613 Service Disabled Veteran 
Owned Small Businesses selling IT hardware to the Federal Government 
today. These small businesses are not manufacturers of IT hardware, 
but resell IT hardware manufactured by other companies to the 
Federal Government. Many of the products these resellers sell will 
meet the IEEE 1680 Standard, and the manufacturers of these products 
will have the option of getting these products EPEAT-registered to 
verify that they do meet this standard.
    The rule does not impose any new reporting, or recordkeeping 
requirements. The IEEE 1680 Standard sets forth required and 
optional criteria. The basic clause in the interim rule mandates 
compliance with all the required criteria, and the clause alternate 
requires that products must also meet 50 percent of the optional 
criteria.
    The EPEAT Product Registry has been designed to encourage small 
business manufacturer participation. There is a sliding scale for 
the annual EPEAT registration fee vendors pay to have their products 
EPEAT-registered based on the annual revenue of the vendor. The 
vendors with the smallest annual revenue pay the smallest annual 
registration fee of $1,000, for which the company may register all 
products. A summary of the standard is available on the EPEAT 
website, but a copy of the standard costs $70. There have been no 
indications from small business vendors to date that the IEEE 1680 
Standard or the EPEAT Product Registry is a hindrance to doing 
business with the Federal Government.
    Because manufacturers are the parties responsible for 
determining if their products meet the IEEE 1680 Standard, there 
will be little to no impact on small businesses selling IT products 
to the Federal Government, who are selling EPEAT-registered 
products.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    There are no practical alternatives that will accomplish the 
objectives of the interim rule.

    The FAR Secretariat has submitted a copy of the IRFA to the Chief 
Counsel for Advocacy of the Small Business Administration. Interested 
parties may obtain a copy from the FAR Secretariat. The Councils will 
consider comments from small entities concerning the affected FAR Parts 
11, 23, 39, and 52 in accordance with 5 U.S.C. 610. Interested parties 
must submit such comments separately and should cite 5 U.S.C. 601, et 
seq. (FAC 2005-23, FAR case 2006-030), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C. 
3501, et seq.

D. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD), the Administrator of General Services (GSA), and the 
Administrator of the National Aeronautics and Space Administration 
(NASA) that urgent and compelling reasons exist to promulgate this 
interim rule without prior opportunity for public comment. This action 
is necessary because Executive Order 13423, Strengthening Federal 
Environmental, Energy, and Transportation Management, effective on 
January 26, 2007, requires the Government to require use of Electronic 
Products Environmental Assessment Tool (EPEAT) when acquiring personal 
computer products such as desktops, notebooks (also known as laptops), 
and monitors. However, pursuant to Public Law 98-577 and FAR 1.501, the 
Councils will consider public comments received in response to this 
interim rule in the formation of the final rule.

List of Subjects in 48 CFR Parts 11, 23, 39, and 52

    Government procurement.

    Dated: December 19, 2007.
Al Matera,
Director, Office of Acquisition Policy.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 11, 23, 39, and 52 as 
set forth below:
0
1. The authority citation for 48 CFR parts 11, 23, 39, and 52 continues 
to read as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 11--DESCRIBING AGENCY NEEDS

0
2. Amend section 11.101 by revising paragraph (b) to read as follows:


11.101  Order of precedence for requirements documents.

* * * * *
    (b) In accordance with OMB Circular A-119, ``Federal Participation 
in the Development and Use of Voluntary Consensus Standards and in 
Conformity Assessment Activities,'' and Section 12(d) of the National 
Technology Transfer and Advancement Act of 1995, Pub. L. 104-113 (15 
U.S.C. 272 note), agencies must use voluntary consensus standards, when 
they exist, in lieu of Government-unique standards, except where 
inconsistent with law or otherwise impractical. The private sector 
manages and administers voluntary consensus standards. Such standards 
are not mandated by law (e.g., industry standards such as ISO 9000, and 
IEEE 1680).

[[Page 73217]]

PART 23--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

0
3. Add section 23.701 to read as follows:


23.701  Definitions.

    As used in this subpart--
    Computer monitor means a video display unit used with a computer.
    Desktop computer means a computer designed for use on a desk or 
table.
    Notebook computer means a portable-style or laptop-style computer 
system.
    Personal computer product means a notebook computer, a desktop 
computer, or a computer monitor, and any peripheral equipment that is 
integral to the operation of such items. For example, the desktop 
computer together with the keyboard, the mouse, and the power cord 
would be a personal computer product. Printers, copiers, and fax 
machines are not included in peripheral equipment, as used in this 
definition.

0
4. Amend section 23.702 by adding paragraphs (h) and (i) to read as 
follows:


23.702  Authorities.

* * * * *
    (h) Executive Order 13221 of July 31, 2001, Energy Efficient 
Standby Power Devices.
    (i) Executive Order 13423 of January 24, 2007, Strengthening 
Federal Environmental, Energy, and Transportation Management.

0
5. Redesignate section 23.705 as 23.706; and add a new section 23.705 
to read as follows:


23.705  Electronic products environmental assessment tool.

    (a) General. As required by E.O. 13423, agencies must ensure that 
they meet at least 95 percent of their annual acquisition requirement 
for electronic products with Electronic Product Environmental 
Assessment Tool (EPEAT)-registered electronic products, unless there is 
no EPEAT standard for such products. This policy applies to contracts 
performed in the United States, unless otherwise provided by agency 
procedures.
    (b) Personal computer products. Personal computer products is a 
category of EPEAT-registered electronic products.
    (1) The IEEE 1680 standard for personal computer products--
    (i) Was issued by the Institute of Electrical and Electronics 
Engineers on April 28, 2006;
    (ii) Is a voluntary consensus standard consistent with Section 
12(d) of Pub. L. 104-113, the ``National Technology Transfer and 
Advancement Act of 1995'', (see 11.102(c));
    (iii) Meets EPA-issued guidance on environmentally preferable 
products and services; and
    (iv) Is described in more detail at http://www.epeat.net.
    (2) A list of EPEAT-registered products that meet the IEEE 1680 
standard can be found at http://www.epeat.net.
    (3) The IEEE 1680 standard sets forth required and optional 
criteria. EPEAT ``Bronze'' registered products must meet all required 
criteria. EPEAT ``Silver'' registered products meet all required 
criteria and 50 percent of the optional criteria. EPEAT ``Gold'' 
registered products meet all required criteria and 75 percent of the 
optional criteria. These are the levels discussed in clause 1.4 of the 
IEEE 1680 standard. The clause at 52.223-16, IEEE 1680 Standard for the 
Environmental Assessment of Personal Computer Products, makes EPEAT 
Bronze registration the standard that contractors must meet. In 
accordance with guidance from the Office of the Federal Environmental 
Executive encouraging agencies to procure EPEAT Silver registered 
products, Alternate I of the clause makes EPEAT Silver registration the 
standard that contractors must meet. Agencies also may use EPEAT Silver 
or Gold registration in the evaluation of proposals.
    (c) The agency shall establish procedures for granting exceptions 
to the requirement in paragraph (a) of this section, with the goal that 
the dollar value of exceptions granted will not exceed 5 percent of the 
total dollar value of electronic products acquired by the agency, for 
which EPEAT-registered products are available. For example, agencies 
may grant an exception if the agency determines that no EPEAT-
registered product meets agency requirements, or that the EPEAT-
registered product will not be cost effective over the life of the 
product.

0
6. Revise the newly designated section 23.706 to read as follows:


23.706  Contract clauses.

    (a) Insert the clause at 52.223-10, Waste Reduction Program, in all 
solicitations and contracts for contractor operation of Government-
owned or -leased facilities and all solicitations and contracts for 
support services at Government-owned or -operated facilities.
    (b)(1) Unless an exception has been approved in accordance with 
23.705(c), insert the clause at 52.223-16, IEEE 1680 Standard for the 
Environmental Assessment of Personal Computer Products, in all 
solicitations and contracts for--
    (i) Personal computer products;
    (ii) Services that require furnishing of personal computer products 
for use by the Government; or
    (iii) Contractor operation of Government-owned facilities.
    (2) Agencies may use the clause with its Alternate I when there are 
sufficient EPEAT Silver registered products available to meet agency 
needs.

PART 39--ACQUISITION OF INFORMATION TECHNOLOGY

0
7. Amend section 39.101 by revising paragraph (b) to read as follows:


39.101  Policy.

* * * * *
    (b)(1) In acquiring information technology, agencies shall identify 
their requirements pursuant to--
    (i) OMB Circular A-130, including consideration of security of 
resources, protection of privacy, national security and emergency 
preparedness, accommodations for individuals with disabilities, and 
energy efficiency; and
    (ii) Standards for environmental assessment of personal computer 
products (see 23.705).
    (2) When developing an acquisition strategy, contracting officers 
should consider the rapidly changing nature of information technology 
through market research (see Part 10) and the application of technology 
refreshment techniques.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
8. Amend section 52.212-5 by--
0
a. Revising the date of the clause; and
0
b. Redesignating paragraphs (b)(27) through (b)(39) as (b)(28) through 
(b)(40), respectively, and adding a new paragraph (b)(27).
    The added text reads as follows:


52.212-5  Contract Terms and Conditions Required to Implement Statutes 
or Executive Orders--Commercial Items.

* * * * *

CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR 
EXECUTIVE ORDERS--COMMERCIAL ITEMS (DEC 2007) * * * * *

    (b) * * *
    -- (27)(i) 52.223-16, IEEE 1680 Standard for the Environmental 
Assessment of Personal Computer Products (DEC 2007) (E.O. 13423).

[[Page 73218]]

    -- (ii) Alternate I (DEC 2007) of 52.223-16.
* * * * *


52.223-10  [Amended]

0
9. Amend section 52.223-10 by removing from the introductory text 
``23.705'' and adding ``23.706(a)'' in its place.

0
10. Add section 52.223-16 to read as follows:


52.223-16  IEEE 1680 Standard for the Environmental Assessment of 
Personal Computer Products.

    As prescribed in 23.706(b)(1), insert the following clause:

IEEE 1680 STANDARD FOR THE ENVIRONMENTAL ASSESSMENT OF PERSONAL 
COMPUTER PRODUCTS (DEC 2007)

    (a) Definitions. As used in this clause--
    Computer monitor means a video display unit used with a 
computer.
    Desktop computer means a computer designed for use on a desk or 
table.
    Notebook computer means a portable-style or laptop-style 
computer system.
    Personal computer product means a notebook computer, a desktop 
computer, or a computer monitor, and any peripheral equipment that 
is integral to the operation of such items. For example, the desktop 
computer together with the keyboard, the mouse, and the power cord 
would be a personal computer product. Printers, copiers, and fax 
machines are not included in peripheral equipment, as used in this 
definition.
    (b) Under this contract, the Contractor shall deliver, furnish 
for Government use, or furnish for contractor use at a Government-
owned facility, only personal computer products that at the time of 
submission of proposals were EPEAT Bronze registered or higher. 
Bronze is the first level discussed in clause 1.4 of the IEEE 1680 
Standard for the Environmental Assessment of Personal Computer 
Products.
    (c) For information about the standard, see http://www.epeat.net.

(End of clause)

Alternate I (DEC 2007)

    As prescribed in 23.706(b)(2), substitute the following paragraph 
(b) for paragraph (b) of the basic clause:

    (b) Under this contract, the Contractor shall deliver, furnish 
for Government use, or furnish for contractor use at a Government-
owned facility, only personal computer products that at the time of 
submission of proposals were EPEAT Silver registered or higher. 
Silver is the second level discussed in clause 1.4 of the IEEE 1680 
Standard for the Environmental Assessment of Personal Computer 
Products.

[FR Doc. E7-24937 Filed 12-21-07; 8:45 am]
BILLING CODE 6820-EP-P